Reference no: EM13933997

You are a registered migration agent. You have been engaged by Machteld Van der Wuiz, to lodge an application for review of a decision of a delegate of the Minister made 15 days ago to refuse her application for a Partner (Temporary) (Class UK) visa.

Machteld applied to the Department of Immigration and Border Protection for the visa on 2 July 2013.

The delegate refused the visa application on the basis that Machteld did not satisfy cl.820.211(2)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she was not satisfied that Machteld was the spouse or de facto partner of her sponsor. Specifically, the delegate found that Machteld and her sponsor had not been in a de facto partner relationship for the 12 months immediately preceding the application under review.

Machteld was born in The Hague, The Netherlands, in 1985 and is a Dutch citizen. She has not previously married or lived in a de facto relationship. She came to Australia on 17 February 2012 as the holder of a subclass 417 working holiday visa. Machteld's partner and sponsor, Rusty Smith, was born in Inverell in 1983, and is an Australian citizen. He has been married previously, and was divorced in 2004. He has also lived in a de facto relationship. He has two children from his previous relationships, the youngest of whom was born after he and the applicant commenced their relationship.

Statements from the applicant and sponsor on the Departmental file state that they met in February 2012 at Inverell in New South Wales where the applicant was working on a free range pig farm. They began a relationship soon after meeting. When the sponsor finished his work in the town the applicant quit her job to accompany him to Brisbane, where his two children are based. They arrived in Brisbane on 1 September 2012 and stayed with his friend until they found a place for themselves on 20 September 2012.

Machteld explains to you that they have been living together in their own place since 20 September 2012. In January 2013 they took out a joint mortgage to buy the house. They have a joint bank account into which both of their incomes are deposited. They share all the bills including the mortgage repayments and utilities as well as payments for the car that they purchased in October 2012. They lead an active social life, being members of their local community group, and have a strong network of friends and family.

Machteld tells you that when she and Rusty first lived together his previous partner was pregnant with his second child, Ruby, who was born in December 2012. She said that she is a step-mother to the two children, who are with her and Rusty every second weekend and during holiday times. Altogether, she said, the children spend about a quarter of their time with her and Rusty. She has a close relationship with them, having been their father's partner since the older girl was 5 and before Ruby was born.

According to Machteld, Rusty pays maintenance for both girls. There is a court order in place which covers maintenance and custody for the older girl. For Ruby, the arrangements are by consent as Rusty has a good relationship with Ruby's mother, as does Machteld. Graduate Certificate in Australian Migration Law & Practice

She explains to you that they learned last week that Ruby's mother has been diagnosed with stage 4 breast cancer and does not have a good prognosis. They are all devastated and trying to support the girls and Ruby's mother as much as they can.

Machteld tells you that Rusty would be unable to accompany her back to The Netherlands should it be necessary for her to leave Australia. She tells you that Rusty's girls need him here in Australia, particularly given the health of Ruby's mother, and that he is far too good a father to leave them. She tells you that their family life would be considerably disrupted if she had to leave Australia and apply overseas. She has grown close to Rusty's daughters and feels that now, more than ever, they need stability in their lives. Since Ruby's mother has been diagnosed with cancer, Rusty and Machteld are looking after Ruby during the week whenever Ruby's mother is too tired to do so. Machteld tells you that she needs to be with them at this critical time. She also says that Rusty would find it hard to meet their mortgage repayments without her wage from the cafe where she works, particularly given the extra child care he would have to find for his daughters, were Machteld not around.

Prepare a submission to the appropriate review Tribunal addressing its jurisdiction to review the decision and seeking that the original decision be set aside, including reference to all necessary and relevant supporting documents.